Oscar Wilde’s frequently quoted adage “No good deed goes unpunished” easily can be applied to the recently enacted Bail Reform Law, which ends bail for misdemeanor and low-level felony crimes considered nonviolent. The state legislature’s intent may have been good – to end the longtime practice of having people accused of a crime held in jail while awaiting trial because they were too poor to post the required bail. However, the initial results are alarming. In only the first few weeks of 2020, there have been numerous instances in Nassau and Suffolk Counties where suspects arrested for committing crimes were released without bail, only to once again engage in criminal activity.

Bail reform quickly has become a volatile issue for our state legislators as swift and widespread criticism from local governments, judges, law enforcement groups and civic organizations has created an escalating negative backlash. As former Nassau County prosecutors and current criminal defense attorneys, as well as village mayors, we have a distinct advantage of being able to look at both sides of the argument and believe reaching a fair compromise must be a priority in this state legislative session.

With bail reform garnering the majority of media attention, another criminal justice reform legislation with far reaching fiscal impact has been relatively unnoticed. We are referring to the new discovery legislation.

Discovery is the mechanism by which those accused of crimes are given relevant material and information about their case before it heads to trial or a person takes a plea.

Prior to 2020, discovery was available to the accused only after a request for discovery. Under the new legislation, discovery is automatic and it is incumbent upon prosecutors to provide it within 15 days of a defendant’s arraignment on an accusatory instrument. Under certain circumstances, prosecutors can ask the court to grant an additional 30 days. Additionally, the scope of what is to be turned over has greatly increased including witness names and their contact information.

For Nassau County’s 64 incorporated villages, there could be substantial fiscal impact. Village police departments, whose officers make arrests resulting in misdemeanor or felony charges, must meet the discovery obligations even though most cases will not be prosecuted in village courts (none of the villages prosecute felonies). They, in coordination with the Nassau County District Attorney’s Office, will be tasked with ensuring compliance with the discovery statute. For villages prosecuting misdemeanors, the burden will be born not just by the village police, but also by the village prosecutors. They will have to file what the new statute calls “certificates of compliance” to alert the courts and the defendants that they have turned over all discovery. The statute does provide that prosecutors do not have to turn over discovery if they have made a plea offer to a defendant of a non-criminal charge, but it will take litigation and court decisions to see exactly how it will be interpreted and implemented.

Village courts and personnel will be negatively impacted by another unfunded state mandate. The New York Conference of Mayors and Municipal Officials (NYCOM), whose president is Village of Freeport Mayor Robert Kennedy, has proposed the following set of amendments that are consistent with the intent of the criminal justice reforms but allow for more effective and affordable implementation:

Ensure cities and villages are provided with additional financial and operational support to offset the cost of these mandated measures;

Allow 60 days for prosecutors to disclose evidence to the defense for criminal charges;

Exclude from the accelerated discovery requirements any charge not involving a misdemeanor or felony;

Adjust the 20-day arraignment requirement to accommodate local courts that meet on a monthly basis;

Allow prosecutors to withhold sensitive information, such as victim contact information, without having to obtain a court order.

The Nassau County Village Officials Association (NCVOA), representing 64 incorporated villages, believes NYCOM’s proposed amendments are reasonable. We urge our state legislators to consider the needs of all our residents as they look to reach an acceptable compromise to these controversial new laws.

Edward Lieberman, Esq. is the mayor of the Village of Sea Cliff and president of the Nassau County Village Officials Association (NCVOA). Geoffrey Prime, Esq. is the mayor of the Village of South Floral Park and chair of the NCVOA Education Committee.

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